Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-06-02
SUPERIOR COURT.


argument for the defendant In the case OF
Philip IL. and Emma A. Clark Va. Henry
L. Ohurchmsn, ct the session Of superior
court yesterday afternoon week, and closed
nj 4.45 o'clock. Benjamin Nields, Esq,
made the closing argument for the plain.
tifls. He held that tho bank which Mr.,
OhurchmAn cut, and thus permitted tho
Clark meadow TO be flooded, had been
standing longer than any man In the
neighborhood could remember. The
property along the stream had been pur-
chased with reference 10 this bank, and
the defendant had no right to cut it or
impair It's efficiency In any way. He
commented on Churchman'S public deo-
larations In reference 10 Philip Il. Olark,s
financial condition, as showing disposi-
ton 10 injure CLARK and drive him away.
Mr.. Nields spoke until O'Clock, when
court adjourned until 10 o'clock Thurs
day morning.
In court Thursday morning Benia-
min NielGs, Esq., resumed the argument
for the plaintiffs In the case Of Philip IL.
and Emma A. CLARK vs.. Henry L. Church.
man, and concluded nj ii o'clock. The
Jury was then charged by Chief Justice
Oomegys. he said the courts of this
Htate never had case like this TO deal
with before. After reviewing the facts of
the case aa detailed by the evidence, the
charge said that much depended upon
the cutting Of the outer bank, in order
10 keep the return bank wet; the
plaintiffs witnesses commended that q
dry bank was better, and those for the
defendant commended that wet bank was
absolutely necessary. This conflicting
testimony must be settled by the jury.
II IL an established rule that while one
may do with his property aB he chooses,
he must not 30 use il as TO injure the
property of his neighbor, and this rule
has been invoked by the plaintiffs TO
justify their claim. Comparing this case
under the fence laws OF the State, the
charge stated that landowner
may remove his part Of a con-
tinuous fence or allow II to fall
down no man Ia required 10 fence his
land against the public, but he can fence
II he desires, for his own protection. No
man has q right to oompsl his neighbor 10
helpkeep mp hisfence, iftheneighbor does
not wish 10 do so. This same law, the
court held, Is applicable to marsh banks,
and when an owner declines TO keep up
his part Of the bank, an adjoining owner
has no redress but TO put up o
bank for his own protection. Nor can
marsh owner recover damages from o
neighbor who keeps bad bank from
which he suffers damage. In the case OF
fences, II man desires 10 remove diyi-
sion fence, he must give his neighbor
reasonable notice of his intention, the
length of the notice being determined by
the actions of such neighbor, his pre-
yious negligence In regard to provid-
ing fences or keeping them in
repair. In marshes, where there has been
no inside bank, and an owner
desires to construct one, involving tho
renewal Of the outside bank, he must
\ give his neighbor reasonable notice, in
order 10 afford him an opportunity of
protecting himself. But where such
neighbor has failed to keep his outside
bank in good condition, 80 that the adj
joining owner has sustained great loss
thereby, II Ia question whether any
such notice 10 necessary. The jury
must decide whether in this case
the plaintiffs were entitled to
any notice. II they were, and received
no such notice, they are entitled TO re-
cover TO the amount OF such damages ah
the jury think, from the evidence, they
actually sustained. But, il the jury
think tho plaintiffs were not entitled "a
such notice, then they can not recover.
In regard 10 cutting the outside bank, il
the jury believed ii was necessary in
order to protect the defendants
property, the PLAINTIFF are not
entitled to recover, but If such
cutting resulted in damage to plaintiffs
and In the opinion of the jury, the dam
age was accustomed by failure to give
the plaintiffs sufficient time to prepare
for keeping of the tide, then they are en-.
titled 10 recover for such damages,
At11.35 o'clock the jury retired.
A jury was next called 10 try the case Of
the Riverside Lumber Company vs.
Thomas 2. Hampton, contractor, and j.
Frank Ruth, owner. Lore n Emmons fol
the plaintiff and Johnston a. Hayes fol
the defendants.
This is an action ON o mechanics lien
for lumber furnished by plaintiff fol
three two.story brick houses erected by
Hampton for Ruth. on Linden street neal
Franklin, the amount involved being
1928. ~, with interest bringing the tOta
20 $6S2.6l
Joseph Bellah, secretary and treasurer
OF the plaintiff company, showed from
the books the charges of the lumber
against Hampton, and the latter's receipt
for the delivery of the stuff at the build
iuRs. Henry Hackett and George W.
Anderson, Solored, drivers for the com
pany, testified TO delivering the stuff al
the buildings and receiving receipts foi
(, either from Hampton or one OF his
workmen.
AZ I2.55 O'Clock court took recess
until p. m.
The mechanics lien case waE resumed
an the superior court in the afternoon
when Joseph Bellah was recalled for the
plaintiff and said j. Frank Ruth came tt
him inter the lumber was furnished fol
the buildings and asked him to sign re
lease. saying he was going to negotiate
loan, He did not pay the bill and Mr.
BelIah did not sign the release. Aftei
offering in evidence the charter OF th.
Riyerside Lumber Company and the deed
of Mr.. Ruth's ownership of the build
ings, the plaintiff rested.
Mr.. HAYES, for the defendants, moyet
I for a nonsuit, on the ground that thu
plaintiff alleged that the material wa
4 fsiruIshed for three three stored houses
( whereas the proof was that the house
were only two storiss high. The cour
I decided that as the allegation acouratel
described the location of the buildings,a
reauired by the statute, the error in re
card to the number of stories was not
B fatal defect. Judge Houston was favor
able TO the motion, "a he considered
important in these cases that the propert
apsipst which il ia sought to enter mt
ohaniosi lien should be described with th
utmost care and partioularity. In defel
enoe to tho opinion of the majority OF I'll
court, however, he waived his objection
TilQhman Johnston, ESD, made tt
openinR. statement for the defendant
before the Jury, and then Thomas
Hampton. the contractor, was CALLED
He examined the plaintiffs itemized bill
and said bis original contract was i
1887 and some cents. some ehaDg'
were afterwards made that ala nor =
auire more than $40 worth OF addi.ion
lumber. The lumber charged py u
plaintiff was not all required ior u
buildings, and all of it did not g. IN
them. The joists ordered were oxS, ~
the plaintiff did not hive them and iu
pished 3x10, with the understanding IN
ne should be no difference in pric
4 pickets supplied, and also some
Syellow pine were used in the fenc
Hind the buildings. The washboar'
"a in ono house were ordered fro
Hey q Hughes. ~,
j. Frank Ruth testified that ne oaii'
~ Inc plaintiffs office after the compl
6on of the houses, and saw on the iedg
the charges against Hampton, viii,
footed up only $425 and some cents.
Afterwards saw Bellah and arranged WI
-. - hnua tha nmonnta he paid